Townsend v. Libbey
| Citation | 70 Me. 162 |
| Parties | STEPHEN W. TOWNSEND, administrator, v. WILLIAM H. LIBBEY. |
| Decision Date | 22 July 1879 |
| Court | Maine Supreme Court |
A judgment by default against a trustee only makes out a prima facie case of indebtedness.
ON REPORT from the superior court of the county of Kennebec.
CASE against the sheriff of the county of Kennebec, to recover damages for an alleged neglect of one of his deputies to attach real estate as directed in a writ in behalf of the plaintiff against one Benjamin Haines as principal defendant and the city of Gardiner as his trustee.
The material facts sufficiently appear in the opinion.
H S. Webster, for the plaintiff.
L Clay, for the defendant, cited Todd v. Darling, 11 Me. 34. Crockett v. Ross, 5 Me. 443, 445. Boynton v. Flye, 12 Me. 17. Pearson v Tincker, 36 Me. 384-388. Abbott v. Jacobs, 49 Me. 319.
This is an action against the sheriff of Kennebec county, to recover damages for an alleged neglect of one of his deputies to attach real estate.
The plaintiff sued out a writ of attachment, dated October 1, 1877, against Benjamin Haines, and the city of Gardiner as his trustee. The writ was served by the deputy to whom it was delivered by serving the trustee with a copy and reading the same to the principal defendant. The action was entered at the next March term at which it was returnable, and judgment by default was rendered against the principal and trustee, and an execution was issued thereon April 2, 1878.
The deputy to whom the writ was delivered for service was ordered to attach real estate, which he failed to do. The damages for this neglect the plaintiff seeks to recover in this action.
At the time of the attachment the defendant was the owner of real estate, the principal part of which he conveyed away shortly after the date of the plaintiff's writ and before the recovery of judgment.
The evidence conclusively shows official neglect on the part of the deputy. The officer was liable if judgment was rendered for the plaintiff, and at the time of its rendition, and while it was in force, there was no real or other estate upon which a levy could be made.
It is urged in defense that the plaintiff should not recover, because the execution was not placed in the hands of an officer within thirty days after the rendition of judgment. But if this debtor had conveyed away all his property so that there was none on which a levy could be made, the delivery of the execution into the hands of an officer would have been an idle and useless ceremony. Abbott v. Jacobs, 49 Me. 319.
If there had been no intervening conveyance or attachment of the debtor's...
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Isenman v. Bur Nell
...formality of demanding goods which the officer had released, and of which the evidence shows he never afterward took possession. Townsend v. Libbey, 70 Me. 162. The defendant's requested ruling that the plaintiff could only recover nominal damages, if any, was properly refused. The true rul......
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Tappin v. McCabe
...duty in failing to execute process if the person demanding the execution thereof has other means at hand to secure his demands. (Townsend v. Libbey, 70 Me. 162; Clark v. Smith, Conn. 1, 25 Am. Dec. 47.) "A plaintiff cannot recover damages from a sheriff on account of negligence by which an ......
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Cairns v. Whittemore
...action does not estop him from alleging and showing the truth. That default is only evidence against him, which may be rebutted. Townsend v. Libby, 70 Me. 162. He now alleges, in writing, even if informally, that the amount of Creighton's property then attached in his hands is $19. The gene......